COMMENT: To Catch All Predators: Toward a Uniform Interpretation of "Sexual Activity" in the Federal Child Enticement Statute

By Julie A. Herward | 63 Am. U. L. Rev. 879 (2014)

The federal child enticement statute, codified at 18 U.S.C. § 2422(b), prohibits the use of interstate commerce to coerce a minor to engage in any illegal “sexual activity.” Congress enacted the statute in response to the rising number and forms of sexual crimes committed against children, especially crimes facilitated via the Internet. However, Congress did not explicitly define the meaning of “sexual activity” in § 2422(b).

Recently, several defendants have appealed their § 2422(b) convictions, asserting that they did not engage in “sexual activity” within the meaning of § 2422(b) because they never physically touched a child. In response to one of these appeals, the U.S. Court of Appeals for the Seventh Circuit, in United States v. Taylor, adopted a narrow interpretation of “sexual activity” that requires interpersonal physical contact between a defendant and a minor for culpability under the statute. However, the following year, the U.S. Court of Appeals for the Fourth Circuit expressly declined to adopt the Seventh Circuit’s interpretation in United States v. Fugit. Instead, the Fourth Circuit broadly interpreted “sexual activity” as not requiring physical contact.

This Comment argues that the Fourth Circuit in Fugit correctly interpreted “sexual activity” to not require interpersonal physical contact between a defendant and a minor. However, § 2422(b), as currently written, could lead some defendants to be subjected to an overly lengthy prison sentence relative to the severity of their underlying conduct. Congress should modify § 2422(b)’s penalty provision to prevent the potential for incongruous penalties. Until such amendment is made, courts should follow the Fourth Circuit’s broad interpretation of “sexual activity.”